IN THE CASE OF:	  

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080014745 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his request for removal of a Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627), dated 5 February 2004, from his Official Military Personnel File (OMPF).

2.  The applicant argues that his Article 15 was unjust based on the following:

	a.  He was never properly read his rights and did not execute a waiver of his rights on the DA Form 3881 (Rights Warning Procedure/Waiver Certificate).  The DA Form 3881 is incomplete, and the commander ordered him to make a statement in violation of his Fifth (5th) Amendment Rights under the U.S. Constitution to remain silent.  Because of this violation, the use of any of the information against him would be contrary to the U.S. Constitution. 

	b.  He was placed in a "no win" position due to a lack of command communication and last minute changes to the leave policy.  At the time he requested leave, the Standing Operating Procedure (SOP) allowed everyone to call the staff duty officer (SDO) to sign out on leave.  The new policy, implemented on 5 December 2003, only authorized pay grade E8 and above Soldiers to phone in or out from leave, passes, and temporary duty (TDY).  The applicant went on TDY from 12-18 December and did not know about the policy change until he called the morning he departed for leave.  He called the SDO 

that morning while still in the Fayetteville metropolitan area and was advised by 
the SDO that he must come in to the unit and sign out.  However, the applicant would have missed his flight had he done so, and he failed to return to the unit and sign out as required.  He contends that the most important factor was a lack of follow up by his command.  The command knew he was going on leave immediately following his TDY and they did not give him any indication that there was a policy change.  Even though he was working in a master sergeant/E-8 position, he was not informed of the changes.  

3.  The applicant provides a self-authored statement, dated 8 September 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011909, on 16 October 2007.  This decision denied the applicant's request to remove his Article 15 from his OMPF.

2.  The applicant provides the above arguments as new evidence in support of his request for reconsideration of his case.

3.  The applicant enlisted in the Regular Army on 25 June 1987.  At the time he was given the Article 15, he was on active duty as a sergeant first class, E-7.  He has since been promoted to master sergeant, E-8 (on 1 March 2005), and is currently serving as a unit first sergeant.

4.  A review of the DA Form 3881 shows that on 30 January 2004, the applicant was advised that he was being investigated for dereliction of duty, disobeying a direct order, failure to follow policy, and conduct unbecoming a noncommissioned officer.  He was advised that he did not have to answer any questions by the investigator; anything that he said could be used as evidence against him in a criminal trial; and that he had the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with him during questioning.  He indicated that he was willing to discuss the offenses under investigation, with or without a lawyer present, and that he understood he had the right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if he had signed a waiver.  No initials are present adjacent to the rights enumerated on the form.


5.  In section B (Waiver) of the DA Form 3881, it states "I understand my rights as stated above, I am now willing to discuss the offenses under investigation and make a statement without talking to a lawyer first and without having a lawyer present with me."  The first sergeant/E-8 signed as the witness.  The applicant did not sign this portion of the form.

6.  Section C (Non-waiver), block 1, of the DA Form 3881 states "I do not want to give up my rights."  There are 2 options available to the interviewee:  (a)  I want a lawyer, and (b) I do not want to be questioned or say anything.  Block 2 provides space for the interviewee's signature.  The applicant did not elect either option and did not sign this section of the form.

7.  On the bottom of the DA Form 3881, it states "Attach this waiver certificate to any sworn statement subsequently executed by the suspect/accused."  The applicant provided a sworn statement which was attached to the DA Form 3881.  In the section titled "Affidavit" the applicant signed the following statement on
30 January 2004 "I, [the applicant], have read or have had read to me this statement which begins on page 1 and ends on page 2.  I fully understand the contents of the entire statement made by me.  The statement is true.  I have initialed all corrections and have initialed the bottom of each page containing the statement.  I have made this statement freely without hope of benefit or reward, without threat of punishment, and without coercion, unlawful influence, or unlawful inducement."  The first sergeant witnessed the applicant's statement and administered him the oath.

8.  A review of the applicant's sworn statement shows that he stated that he told the SDO that he was approximately 2 hours away from the unit.  The SDO indicated that he [the SDO] did not have the authority to tell him to come back or not come back and the right thing to do was to come back and sign out and that he would speak to someone in the am (sic).  He indicated that he knew that Army regulations stated that he was required to be at the home location when signing out on leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's new arguments are without merit.  A thorough review of the DA Form 3881 shows that he verbally indicated that he understood his rights and that he was willing to discuss the offenses under investigation and make a statement without talking to a lawyer first and without having a lawyer present.  He did not sign Section C of the DA Form 3881 indicating that he either wanted a 

lawyer or did not want to be questioned or say anything.  He voluntarily provided a sworn statement and signed an affidavit indicating that he provided the statement freely without hope of benefit or reward, without threat of punishment, and without coercion, unlawful influence, or unlawful inducement. 

2.  In his sworn statement attached to the DA Form 3881, the applicant affirmed that when he called the SDO to sign out on leave he was 2 hours away from his unit.  He now contends that he called when he was still in the Fayetteville 
metropolitan area.  Given the inconsistency in the evidence, it is presumed that he was 2 hours away from his unit as he previously stated.  Regardless of his location, the compelling relevant factor in his case is that he was informed prior to departing on leave that he was required to sign out in person at the unit.  He elected not to do so, a decision which was made after being fully informed of the new policy.  As a senior NCO, he had the duty to comply with Army regulations regarding leave policies.  

3.  The applicant's Article 15 was properly administered in accordance with applicable laws and regulations in effect at the time, and there is no indication of any procedural errors that may have jeopardized his rights.  He was afforded due process and he accepted NJP in lieu of demanding trial by court-martial and he did not appeal the punishment to a higher authority.

4.  The applicant's new argument does not provide a basis to change the Board's previous decision.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070011909, dated 16 October 2007.


															XXX
      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080014745



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014745



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1